CYIL 2015

VICTIMS’ RIGHT TO REPARATION UNDER INTERNATIONAL HUMAN RIGHTS LAW… It seems therefore plausible to conclude that under international human rights law every primary right is inevitably connected with the secondary obligation (and corresponding right) to reparation as a corollary right, and this connection relies on and is governed by the principles of international responsibility. Such a right can exist as an explicit conventional norm as a result of the respective free will and consent of States, and/or it can exist under customary international law by virtue of human rights guaranteed under general international law. In other words, if we admit the existence of customary international human rights norms, we must also admit the existence of a corresponding individual right to reparation, which then shares its origin with the primary right in general international law. It is interesting to add that Orakhelashvili seems to consider (at least in cases when individual rights of ius cogens status were violated) the obligation to provide reparation as a peremptory norm. He not only accepts that individuals have a right to reparation, but it follows from the ius cogens concept that, if the particular right violated is of peremptory character, then its enforcement is outside of the disposition of States, and thus the right to reparation is equally of ius cogens character. 63 However, the acquisition of ius cogens character requires that a respective consensus exists in the international community, on the basis of which the particular norm can be elevated into such status. The consensus also has to be substantiated and confirmed by relevant international practice. I am therefore not convinced that the general right to reparation can be considered as sharing the peremptory character of a primary norm, the violation of which gives rise to it. 3. A right to reparation against international organisations? 3.1 Some preliminary issues It is without any doubt that an obligation to provide reparation for human rights violations exists among states. As shown in the previous chapter, also victims are beneficiaries of such an obligation and have a corresponding right under international law, even outside of conventionally established regimes. The question to be addressed in this part is not anymore that of who is beneficiary of a right to reparation, but that of what is the entity owing the corresponding obligation. It shall be thus asked whether the concept of an individual right to reparation against states also applies in relations against international organisations . International law currently already contains norms which oblige non-state actors to provide reparation. Such norms can be found, for example, in the field of international humanitarian law or in international criminal law. 64 In the latter field the trend is clearly visible, as for example Article 75 of the Rome Statute 63 ORAKHELASHVILI, Alexander. Peremptory Norms and Reparation for the Wrongful Acts. Baltic Yearbook of International Law , 2003, Vol. 3, pp. 19-57, esp. pp. 27-32. 64 SCHWAGER, Elke. Ius bello durante et bello confecto . Berlin: Duncker and Humblot, 2008, pp. 170 -176.

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